The Grimm Injustice Comes from Unelected Bureaucrats Making Law
When the Supreme Court announced last week it would no longer hear Gavin Grimm’s “transgender bathroom case,” competing narratives quickly emerged: LGBT rights versus local control. These dueling storylines miss the larger lesson about the real culprit in so many of these high-profile culture wars cases: the uncontrollable administrative state.
After all, nothing had changed since the Fourth Circuit ruled last year that a Virginia school board must allow Grimm, a biological female who suffers from gender dysphoria, to use the boy’s bathroom. Yet the Supreme Court not only dismissed the appeal but also sent Grimm’s case back for the Fourth Circuit to reconsider. Nothing had changed, that is, except the reigning president and “guidance” issued by his administrative overlords.
We’re Arguing about Opposite Interpretations of Law
Before we go there, let’s do a brief review. The law at issue, Title IX, hasn’t changed since Congress passed that statute in 1972. It quite simply provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .”
Since 1975, federal regulations from the Department of Education, the federal agency charged with enforcing Title IX, have authorized schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” so long as the “facilities provided for students of one sex [are] comparable to such facilities provided for students of the other sex.”
Fast-forward 40 years: On May 13, 2016, the Obama departments of Justice and Education issued a joint letter stating: “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”
The Fourth Circuit relied to this letter to hold that the local school board had violated Title IX by refusing to allow Grimm to use the boys’ bathroom. After losing in the appellate court, the school board had sought review in the Supreme Court. The Supreme Court agreed to hear the appeal and had scheduled oral argument for later this month.
But the transfer of power following Trump’s inauguration handed over the presidential pen. And what the pen giveth, the pen taketh away. On February 22, 2017 with a brief two-page letter, the Trump administration withdrew and rescinded the May 13, 2016 letter. With a mere (electronic) signature, then, the Trump administration jettisoned the Fourth Circuit’s sole justification for ruling in Grimm’s favor. With the Obama administration’s guidance rescinded, the Supreme Court summarily disposed of Grimm’s appeal, sending the case back to the Fourth Circuit, which will now need to decide anew the outcome given this change in circumstance.
This Way of Governing Lets Agencies Effectively Make Law
If rule by bureaucratic decree seems a strange procedure for a constitutional republic, it should. Therein lies the true import of Grimm: not the battle of competing rights, but the power of our adminstrative state. What the Grimm case lays bare is disquieting: Grimm exposes the charade used to justify the deference afforded federal agencies—that they possess subject-matter expertise.
The Grimm case began and ended with deference. Not to the Constitution. Not to the applicable statute, Title IX. Not even a regulation. But deference, a judicial genuflection, to the views of unelected, unaccountable so-called “experts.” This deference to an agency’s interpretation of its own “ambiguous” regulations was mandated by the Supreme Court’s 1997 decision in Auer v. Robbin. The court justified this with the specialized subject-matter expertise administrative agencies supposedly possess.
But it is pure folly to believe that interpreting the word “sex” requires any expert or specialized knowledge. It is beyond parody to claim that the Department of Justice, the Department of Education, and the Equal Employment Opportunity Commission—all distinct federal agencies that have reinterpreted sex to include sexual identity—possess the same specialized knowledge. Further, if the word “sex,” as used in Title IX and its implementing regulations, is ambiguous there is truly no limit to what an agency could redefine under the auspices of “expertise.”
It is the absurdity of deferring to a federal agency’s view of the law based on a purported subject-matter expertise that merits the press and public’s focus, not the transgender angle, because Grimm exposes the too-long ignored reality: The administrative state does not have an expertise. It has a political agenda.
Bureaucrats Have Power, and Power Corrupts
The Grimm case also bares the administrative state’s stealth attack on our constitutional framework. America’s founders devised this framework “to fetter the federal government, and the presidency in particular, to prevent the republic from turning into anything like tyranny.”
The rise of the administrative state—rule by unelected, unchecked executive-branch bureaucrats—over the last 100 years has rendered our republic a mere sliver of the Founders’ vision. As Chief Justice John Roberts put it in his dissent in City of Arlington, Texas v. FCC: “The Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities. ‘[T]he administrative state with its reams of regulations would leave them rubbing their eyes.’”
This modern reality exists because, while the Constitution established three co-equal branches of government, each with specific and limited powers designed to check the other branches, the executive branch has, as Supreme Court nominee Neil Gorsuch put it, “swallow[ed] huge amounts of core judicial and legislative power.” Simultaneously, the judicial and legislative branches have abdicated their constitutionally appointed roles to check the abuse of executive power.
The Grimm case should open the public’s eyes to constitutional modernity. While Congress properly exercised its legislative powers in passing Title IX in 1972 to prohibit sex discrimination, the Fourth Circuit in Grimm did not rely on that statute. Instead, it ruled in favor of Grimm based solely on a letter from two federal agencies. The Grimm decision thus simultaneously showcased the executive branch’s overreach—its making of new laws—and the judicial branch’s abdication of its duty to interpret the law.
The Supreme Court’s dismissal of Grimm’s appeal should cement this disturbing reality in the public’s conscience. Think about it: The Supreme Court of the United States—the highest court in the land, the final arbiter of the law, which emphatically has the province and duty to say what the law is —tiptoed off, stage left, once the new president entered reciting a different soliloquy.
This result should disturb any lover of freedom, whether he supported former President Obama’s interpretation of Title IX or the current administration’s more circumspect position. Let’s hope the Grimm case can finally bring the administrative state’s attack on liberty into focus.
Margot Cleveland is a lawyer, CPA, and adjunct professor for the University of Notre Dame. Cleveland can be reached via email at mobrien@nd.edu or on Twitter at @ProfMJCleveland.
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